A gift under Mohammedan Law is valid without registration if accompanied by declaration, acceptance, and delivery of possession.

JUDGMENT :

E.S. INDIRESH, J.

1. This appeal is preferred by the plaintiffs challenging the judgment and decree dated 24.01.2014 in O.S.No.2790/2003 on the file of the XLIII Addl. City Civil and Sessions Judge Bengaluru, decreeing the suit of the plaintiffs in part.

2. For the sake of convenience, parties are referred as per their status before the Trial Court.

3. The plaintiffs had filed suit in O.S.No.108/1996 before the Court of Munsiff and JMFC at Anekal and thereafter, the said suit was withdrawn and made over to City Civil Court, Bengaluru and accordingly, re-numbered as O.S.No.2790/2003.

4. The facts in nutshell for the purpose of adjudication of the appeal are that, the father of the plaintiffs - Syed Azim Saheb had four daughters and three sons. Plaintiffs and defendant Nos.1 to 3 are the children of Syed Azim Saheb. The second daughter died. The parents of the plaintiffs and defendant Nos.1 to 3 died intestate. During the pendency of the suit, plaintiff No.2 died and his legal heirs were brought on record. Defendant No.4 got impleaded in the suit. It is the case of the plaintiffs that, the plaintiffs and defendant Nos.1 to 3 are governed by the Shariat Law. The grievance of the plaintiffs is that the defendant Nos.1 to 3 in collusion with the revenue officials, created documents in their name, denying the right of the plaintiffs in respect of the suit schedule properties. It is the case of the plaintiffs that, originally the land in question was belonging to the grandfather of the plaintiffs as per the Gift Deed dated 10.09.1932, and after the death of the grandfather, the father of the plaintiffs became owner of the schedule properties. Hence, the plaintiffs filed the suit seeking relief of partition in respect of the suit schedule properties.

5. After service of summons, defendants entered appearance, and defendant Nos.3 and 4 filed written statement. It is the specific case of the defendant No.3 that the plaintiffs have not included certain other properties of the family of their late father, and therefore, the suit is liable to be dismissed.

6. It is the specific case of defendant No.3 that, the item No.1 was originally inam land and during 1932, the jodidar of the land, gifted the property in favour of Syed Hussain Sab @ Choonur Sabh, (grandfather of the defendant No.3). It is the case of defendant No.3 that, the property was inherited by his father. It is also stated that, plaintiffs and defendant No.4 have colluded with each other to grab the suit item No.1 and therefore, sought for dismissal of the suit. It is also stated in the written statement that item No.2 of the schedule properties belonged to Khajia bi (maternal grandmother of defendant No.3) and therefore, sought for equitable share in the schedule properties.

7. Defendant No.4 has filed separate written statement by contending that, item No.1 of the suit schedule property is an inam land, granted in favour of father of the defendant No.4 during 1962 by the Special Deputy Commissioner of Inam Abolition, Bangalore, in case No.INA.PR.255/1960-61 and therefore, sought for dismissal of the suit.

8. The Trial Court, based on the pleadings on record, formulated the following issues for its consideration:

"1. Whether plaintiffs prove that the suit properties were belonging to the ownership of their father and the plaintiffs defendants 1 to 3 are tenants-in- common in suit properties?

2. Whether defendant No.3 proves that suit item No.2 was belonging to the exclusive ownership of his mother Smt. Hydar Bi Ur Malan Bi?

3. Whether defendant No.3 proves that his